Willful Blindness and Global-Tech Appliances v. SEB

May 31st, 2011

Global-Tech Appliances v. SEB, decided today, is a patent case. I don’t know much about the issues at play here, so I won’t opine on the merits. I will write a bit about Justice Alito’s discussion of willful blindness in the context of criminal law.

The doctrine of willful blindness is well established in criminal law. Many criminal statutes require proof that adefendant acted knowingly or willfully, and courts applying the doctrine of willful blindness hold that defendants cannot escape the reach of these statutes by deliberatelyshielding themselves from clear evidence of critical factsthat are strongly suggested by the circumstances. The traditional rationale for this doctrine is that defendants who behave in this manner are just as culpable as those who have actual knowledge. . . . It is also said that persons who know enough to blind themselves to direct proofof critical facts in effect have actual knowledge of thosefacts.

Justice Alito, tracing the progeny of the willful blindness doctrine, finds its roots, in (gasp!) foreign law (well from England, so I guess that’s close enough for Scalia’s taste).

6The doctrine emerged in English law almost four decades earlierand became firmly established by the end of the 19th century. Edwards 298–301. In American law, one of the earliest references to the doctrine appears in an 1882 jury charge in a federal prosecution. In the charge, the trial judge rejected the “great misapprehension” that a person may“close his eyes, when he pleases, upon all sources of information, andthen excuse his ignorance by saying that he does not see anything.”

This Court’s opinion more than a century ago in Spurrv. United States, 174 U. S. 728 (1899),6 while not using theterm “willful blindness,” endorsed a similar concept.

With this strong pedigree, Alito proceeds to apply it to the patent statute at hand:

Given the long history of willful blindness and its wideacceptance in the Federal Judiciary, we can see no reasonwhy the doctrine should not apply in civil lawsuits for induced patent infringement under 35 U. S. C. §271(b)

Justice Kennedy, who dissented alone, does not agree with this approach.

Having interpreted the stat-ute to require a showing of knowledge, the Court holds that willful blindness will suffice. This is a mistaken step. Willful blindness is not knowledge; and judges should not broaden a legislative proscription by analogy. See United States v. Jewell, 532 F. 2d 697, 706 (CA9 1976) (en banc) (Kennedy, J., dissenting) (“When a statute specifically requires knowledge as an element of a crime, however, thesubstitution of some other state of mind cannot be justified even if the court deems that both are equally blamewor-thy”) In my respectful submission, the Court is incorrectin the definition it now adopts; but even on its own terms the Court should remand to the Court of Appeals to con-sider in the first instance whether there is sufficient evi-dence of knowledge to support the jury’s finding ofinducement.

The Court invokes willful blindness to bring those who lack knowledge within §271(b)’s prohibition. . . . The Court’s defini-tion of willful blindness reveals this basic purpose. One can believe that there is a “high probability” that actsmight infringe a patent but nonetheless conclude they do not infringe. Ante, at 14; see also ibid. (describing a will-fully blind defendant as one “who can almost be said to have actually known the critical facts”). The allegedinducer who believes a device is noninfringing cannot be said to know otherwise.The Court justifies its substitution of willful blindnessfor the statutory knowledge requirement in two ways, neither of which is convincing.

Next, Kennedy waxes a bit about the moral questions behind willful blindness.

First, the Court appeals to moral theory by citing the“traditional rationale” that willfully blind defendants “arejust as culpable as those who have actual knowledge.” Ante, at 10. But the moral question is a difficult one. Is it true that the lawyer who knowingly suborns perjury is no more culpable than the lawyer who avoids learning that his client, a criminal defendant, lies when he testifies that he was not the shooter? See Hellman, Willfully Blind for Good Reason, 3 Crim. L. & Philosophy 301, 305–308 (2009); Luban, Contrived Ignorance, 87 Geo. L. J. 957 (1999). The answer is not obvious. Perhaps the culpabil-ity of willful blindness depends on a person’s reasons forremaining blind. E.g., ibid. Or perhaps only the person’sjustification for his conduct is relevant. E.g., Alexander & Ferzan, supra, at 23–68. This is a question of moralityand of policy best left to the political branches. Even if one were to accept the substitution of equally blamewor-thy mental states in criminal cases in light of the retributive purposes of the criminal law, those purposes have noforce in the domain of patent law that controls in this case. The Constitution confirms that the purpose of the patentlaw is a utilitarian one, to “promote the Progress of Sci-ence and useful Arts,” Art. I, §8, cl. 8.

Kennedy notes that Alito’s reasoning could be extended to all federal criminal cases with an element of knowledge, even though this issue was never briefed:

The Court appears to endorse the willful blindnessdoctrine here for all federal criminal cases involvingknowledge. It does so in a civil case where it has received no briefing or argument from the criminal defense bar, which might have provided important counsel on this difficult issue.

Plus a cite to Justice Harlan I, what!

The majority’s decision to expand the statute’s scope appears to depend on the unstated premisethat knowledge requires certainty, but the law often per-mits probabilistic judgments to count as knowledge. Cf. Connecticut Mut. Life Ins. Co. v. Lathrop, 111 U. S. 612, 620 (1884) (Harlan, J.) (“[B]eing founded on actual obser-vation, and being consistent with common experience andthe ordinary manifestations of the condition of the mind, itis knowledge, so far as the human intellect can acquire knowledge, upon such subjects”).

Alito replies in a footnote to Kennedy’s rejoinder:

8Unlike the dissent, we do not think that utilitarian concerns demand a stricter standard for knowledge under §271(b), see post, at 3 (opinion of KENNEDY, J.). The dissent does not explain—nor can wesee—why promoting “ ‘the Progress of Science and useful Arts,’ ” ibid., requires protecting parties who actively encourage others to violate patent rights and who take deliberate steps to remain ignorant of those rights despite a high probability that the rights exist and are beinginfringed, see infra, at 13–14.

Interesting if we see this issue raised in future criminal cases.